First, at the outset, let me say that I am not alleging any type of conspiracy of intent. Nor am I indicating that BP has not stepped up to the plate so far in this matter. While their response was unorganized, especially at the beginning (given the risks involved they should have had a better approach in place) they have come in with their counsel and organized things. Also, while I intend to point out shortcomings in the settlement process, I am not arguing with the settlement in so far as it goes.
I am not condemning the process nor the administrative people, from the judge up or down who run this process. I am not condemning BP or the attorneys on either side who are included in the up and down process referred to above. I am, personally, deeply indebted to the attorneys and BP, to the court that forced these issues forward. Perhaps everyone, even those who are poorly compensated (or not compensated) by the settlement owe a debt in some respects. This process has brought a broad remedy to so many people outside of the OPA
In fact, part of the estoppel is argued to come from the fact that the parties have thrown the OPA to the winds, not just here, but in other cases.
When the settlement was reached, it contained certain provisions which had within them a certain suggestion of corruption of the system. This is not to say they were inappropriate or that the parties that entered into these negotiations with strict time limits had the time to consider the full ramifications of every part of the settlement. If they had more time, perhaps the suggestion of a certain lack of caring might be appropriate, but as this is viewed from the present, with ample time to consider what the documents say and what they leave out; it is unfair to accuse someone who did a job.
The settlement isn't perfect, even for those it seeks to protect. By necessity certain groups were excluded in order to avoid difficult questions of proof. That is the nature of settlement.
It is the process of exclusion, the process of opting out that is the subject of this essay and how that was handled and how it was not handled. It should be noted that the "system" for resolving class issues was followed. There is not question about corrupting the system. This is an essay on the results of taking short cuts, perhaps necessitated by circumstances and what appears in retrospect.
It is tied to the presentment requirement which only someone who read the Oil Pollution Act (OPA) would know about, it is tied to the opportunities wasted to educate, it is tied to the way monies were paid and the conditions tied to the settlement. So let us discuss those briefly.
Opportunities Lost and omissions: The plaintiffs in this case filed several class actions which were extremely important for both sides to get to a remedy. However, these actions give the appearance of "tolling" the statute of limitations. They indicate to the public that they are represented and that their counsel is looking out for them.
Ignorance of the law is no defense, normally. Estoppel, however, can present a defense and I suggest one may have been created with the suggestions and waivers and lost opportunities which are discussed below. The OPA requires presentment, apparently, at least for a trust fund, a delay of 90 days and then suit. This moves the statute of limitations from 4/20/13 to 1/18/13 effectively for those not covered by the class action settlement.
If the OPA is stretched (as it apparently has been, correctly or not in the past) to have presentment as a requirement and if the OPA is the only remedy (which appears to be the position of the court, correctly or not) that broadly applies; then I suggest that there should have been a disclaimer to this effect in every mass mailing to the public. The omission of the presentment followed by suit provisions arguably, should create an estoppel. The very fact that presentment then suit is not required in the class settlement might bolster this estoppel argument.
Monies Paid: The class representatives are the best attorneys in the country (along with some others). They are above reproach in many ways, but their very skill as litigators means that we should examine omissions more carefully. These attorneys were given a "well earned" fee of 600 million dollars. In an unprecedented moved, 75 million was paid in advance of the settlement. In another unprecedented move, much to the credit of BP and plaintiff's counsel, payments on the settlement began before it was even approved! That alone should atone for any omission, but this isn't about atonement, it is about appearance. The attorneys therefore had great incentive to have this settlement move forward.
Conditions tied to the settlement: There was (literally) a sealed envelope containing a number. This number was the number of people who would have to opt out for the settlement to be withdrawn. This is an entirely reasonable thing. The judge worked very hard to get the parties to agree, walking a tightrope which few can appreciate. Solomon understood it, those who wrote of him saw it. The rest of us merely judge from ivory towers. The judge, the attorneys, and BP had a huge issue to deal with. The billions paid, the billions to be paid, the inability to "fix" what was done with money alone are incomprehensible until they get down to the level of a businessperson or developer or employee who has slaved his life to get to a place and then goes home to his/her family and says, we're moving to a shelter because no one buys anything anymore. The entire industries that lost large portions of their infrastructure which need to be rebuilt is the subject of an entire book (China's Weaponized Economy) which I strongly suggest anyone interested in this discussion read (there is a brief paper and a short film on the subject in this blog somewhere for those who do not want to order books). HOWEVER, this condition meant that the attorneys on the plaintiff side had created or been handed a 600 million dollar incentive for people not to know about the opt out provisions or at least that they not exercise it. Hence, the omission of a reference to the obligations (presentment and suit) in the information sent to the public, in announcements, etc creates the appearance that those people were not served by their class counsel and that this was done for "silver" as it were. I do not want to suggest this was the case. In fact, I believe just the opposite. To the extent this was done, it was an accident, to the extent not corrected, I would suggest counsel (class and otherwise) wanted to make sure a necessary remedy remained in place. Imagine the chaos if suddenly all the class members had to do presentment!
Now this is not the first time I have raised this issue and this blog is not broadly read. If the parties, however, realized this, or were told this and continued to fail to insist that the public be informed, the argument in favor of waiver or estoppel is increased several times.
Estoppel or Waiver of the OPA is a position, not a legal finding.
Because BP has allowed short form joinder and has also allowed that GCCF filings are a part of presentment, waiver of OPA is implied. In addition, because BP has provided in the settlement for claims in the settlement which necessarily are beyond, by more than 180 days, the presentment deadline, estoppel is implied. The other issues raised imply this.
The question of what effect the still pending class actions have on this and the problems which are caused by this remain to be determined. More on this later.
No comments:
Post a Comment